United States of America v. Alan Grecco

The Honorable Jan E. DuBois, Senior District Judge for the United States District*
Court for the Eastern District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4102
UNITED STATES OF AMERICA,
v.
ALAN GRECCO,
Appellant
On Appeal from the United States District Court
for the District Court of New Jersey
District Court No. 2-89-cr-250-2
District Judge: The Honorable Harold A. Ackerman
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 26, 2009
Before: BARRY, SMITH, Circuit Judges
and DuBOIS, District Judge*
(Filed: August 19, 2009)
OPINION
DuBois, District Judge.
Defendant-Appellant Alan Grecco was convicted by jury of violating, inter alia,

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In United States v. Wise, 515 F.3d 207 (3d Cir. 2008), we questioned the1
accuracy of referring to USSG § 1B1.10(c) amendments as “retroactive” amendments. Id.
at 220 n.10. Nevertheless, the term is commonly used to identify those amendments
which may be considered by the district court for purposes of reducing a defendant’s
sentence under 18 U.S.C. § 3582(c)(2). See, e.g., United States v. Doe, 564 F.3d 305, 308
(3d Cir. 2009); United States v. Ahrendt, 560 F.3d 69, 78 n.7 (1st Cir. 2009); United
States v. Dunphy, 551 F.3d 247, 249 & n.2 (4th Cir. 2009); United States v. Regalado,
518 F.3d 143, 150 (2d Cir. 2008).
2
the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962.
Based in part on a jury finding that Grecco was guilty of conspiracy to commit murder
(the third of six enumerated racketeering acts), the District Court sentenced Grecco to
sixty-five years incarceration. On direct appeal, we affirmed Grecco’s conviction and
sentence. United States v. Gatto, 995 F.2d 449 (3d Cir. 1993).
On February 22, 2008, Grecco filed a motion for sentencing relief pursuant to 18
U.S.C. § 3582(c)(2). In the motion, Grecco argued that Amendment 591 to the United
States Sentencing Guidelines, listed in USSG § 1B1.10(c) as a retroactive amendment,1
invalidated the process by which the District Court calculated his sentence and that he
should be resentenced under a properly calculated guideline range. The District Court
denied Grecco’s motion by Order dated September 26, 2008. Grecco appeals that denial.
I.
On July 20, 1989, Grecco and co-defendant Louis Gatto were charged in a seven-
count Indictment with operating illegal sports and numbers gambling businesses in
violation of RICO, 18 U.S.C. § 1962, the Travel Act, 18 U.S.C. § 1952, and the

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On April 26, 1979, Mistretta was attacked by two men and stabbed repeatedly2
with an ice pick. Mistretta died as a result of his injuries.
3
Organized Crime Control Act of 1970, 18 U.S.C. § 1955. The first two Counts of the
Indictment, the only Counts at issue in this appeal, alleged a conspiracy to violate RICO
and substantive violations of RICO. Those Counts enumerated six predicate acts as the
basis for a pattern of racketeering activity that began in 1973 and continued through the
filing date of the Indictment on July 20, 1989. The only relevant predicate act for the
purposes of this appeal—Racketeering Act 3—charged defendants with conspiring to
murder Vincent Mistretta (“Mistretta”). On June 19, 1991, an anonymous jury found2
defendants guilty of all predicate acts, including Racketeering Act 3, and convicted
defendants on all Counts of the Indictment.
Grecco was sentenced on November 11, 1991. The District Court adopted the
factual findings and guidelines calculations in the Presentence Report (“PSR”) which, for
Grecco’s RICO violations, began with USSG § 2E1.1, the offense guideline for
“Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations.” (App.
49; PSR ¶ 72.) USSG § 2E1.1 mandates that the base offense level for RICO offenses
shall be the greater of either 19 or the “offense level applicable to the underlying
racketeering activity.” In determining the offense level applicable to the underlying
racketeering activity, the PSR applied Application Note 1 to USSG § 2E1.1 which directs
the court to “treat each underlying offense as if contained in a separate count of

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Sentencing courts use the edition of the Guidelines in effect on the date of3
sentencing unless it is determined that the use of that edition would violate the Ex Post
Facto Clause of the United States Constitution. 18 U.S.C. § 3553(a)(4); USSG § 1B1.11;
United States v. Menon, 24 F.3d 550, 566 (3d Cir. 1994); United States v. Cianscewski,
894 F.2d 74, 77 n.6 (3d Cir. 1990). Where the use of the current edition would violate the
Ex Post Facto Clause, the sentencing court uses the edition of the Guidelines in effect on
the date the offense was committed. USSG § 1B1.11. The November 1, 1991 Guidelines
were in effect at the date of Grecco’s sentencing; the October 15, 1988 Guidelines were
in effect at the termination of the RICO conspiracy on July 20, 1989.
In its opinion below, the District Court incorrectly states that USSG § 2A1.14
included conspiracy to commit murder at the time of Grecco’s 1991 sentencing. In fact,
USSG § 2A1.5 was in effect on the date of Grecco’s sentencing and covered conspiracy
to commit murder. Further, USSG § 2A1.1 never included conspiracy to commit murder.
Prior to Amendment 311, as stated in the text above, conspiracy to commit murder was
included in the guideline for attempted murder, USSG § 2A2.1. Although Grecco argues
in favor of the District Court’s view of Guidelines history, it is not relevant to the instant
appeal and is only mentioned for purposes of clarity.
4
conviction.” For Racketeering Act 3, the underlying offense was deemed to be conspiracy
to commit murder. (PSR ¶ 85.)
At the sentencing hearing, the parties disagreed over the edition of the United
States Sentencing Guidelines (“Guidelines”) which should be used—October 15, 1988 or
November 1, 1991. At stake was Amendment 311 (effective November 1, 1990) which,3
inter alia, added USSG § 2A1.5 (“Conspiracy or Solicitation to Commit Murder”) to the
Homicide subpart of Chapter 2. In earlier editions of the Guidelines, conspiracy to
commit murder was included in USSG § 2A2.1 (“Assault With Intent to Commit Murder;
Conspiracy or Solicitation to Commit Murder; Attempted Murder”). The earlier version4
of the guideline for conspiracy to commit murder set a base offense level of 20, subject to
a number of specific offense characteristics; the later version set a base offense level of

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The parties and the District Court in its opinion below have created a certain5
amount of confusion with regard to the guidelines treatment of Racketeering Act 3 at
sentencing. Grecco asserts that the District Court used USSG § 2A1.1 as the offense
guideline for conspiracy to commit murder. The government disagrees and points to a
portion of the sentencing transcript which, in its view, suggests that the District Court
used USSG § 2A1.1 based on a relevant conduct finding that Grecco murdered Mistretta
in furtherance of the conspiracy to murder Mistretta. We note that the record provides
scant support for either of these positions. Nevertheless, the dispute is not relevant for the
instant appeal because the parties agree (1) that Racketeering Act 3 was conspiracy to
commit murder, not first degree murder, and (2) that the District Court selected the base
offense level in USSG § 2A1.1 by applying the USSG § 2E1.1(a)(2) cross reference for
“underlying racketeering activity.”
5
28 and included a cross reference to the first degree murder guideline, USSG § 2A1.1
(base offense level 43), in cases where “the offense resulted in the death of a victim.”
Compare USSG § 2A1.5 (1991), with USSG § 2A2.1 (1988).
At sentencing, Grecco objected to the use of the 1991 Guidelines on ex post facto
grounds, arguing that the higher base offense level in USSG § 2A1.5 and the USSG
§ 2A1.5(c)(1) cross reference to first degree murder made the 1991 Guidelines more
severe than the 1988 Guidelines. The District Court ruled that Amendment 311 did not
change the outcome of the District Court’s Guidelines calculations, (App. 46), and
ultimately determined that the base offense level for Racketeering Act 3 was 43, based on
USSG § 2A1.1. The District Court then added 4 levels under USSG § 3B1.1(a) for5
Grecco’s role in the offense. Although the resulting total offense level of 47 would have
led to a life sentence under the Guidelines, the District Court imposed a twenty-year
statutory maximum sentence for each of Grecco’s RICO convictions (Counts 1 and 2).

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We note that Grecco’s instant position—that the sentencing court should have6
applied USSG § 2A1.5 (1991) (base offense level 28)—directly conflicts with the
position Grecco took at the original sentencing—that the sentencing court should not
apply USSG § 2A1.5 (1991). Understanding the shift in defendant’s argument requires
closer examination of two factors. First, at the 1991 sentencing, defendant was arguing in
favor of his proposed alternative, USSG § 2A2.1 (1988) (base offense level 20), on ex
post facto grounds. Defendant’s ex post facto argument was, however, rejected by both
the District Court and this Court. He now argues for the application of USSG § 2A1.5
(1991) in an effort to avoid the provision ultimately used by the sentencing court, USSG
§ 2A1.1 (base offense level 43). Second, defendant now presents a subsidiary argument,
not presented at the original sentencing, that the USSG § 2A1.5(c)(1) cross reference to
USSG § 2A1.1 is inapplicable in this case. Any such argument is completely without
merit in light of the fact, stated in the PSR and adopted by the District Court at the
original sentencing, that Grecco’s conspiracy to murder Mistretta resulted in Mistretta’s
death. (PSR ¶ 48, 52; App. 49.) At sentencing, defense counsel was given an opportunity
to object to the factual findings in the PSR and did not do so. (App. 6.)
6
See USSG § 5A; 18 U.S.C. § 1963. The District Court also sentenced Grecco to the
statutory maximum on the remaining counts of conviction and ordered the sentences to
run consecutively, leading to a total sentence of 65 years imprisonment. On direct appeal,
we affirmed the District Court’s guidelines calculations and sentence. United States v.
Gatto, 995 F.2d 449, 450 n.1 (3d Cir. 1993).
On February 22, 2008, Grecco filed a motion for sentencing relief pursuant to 18
U.S.C. § 3582(c)(2). In his motion and on appeal, Grecco argues that the sentencing court
“assigned USSG § 2A1.1, first degree murder, as the guideline for [the] underlying
racketeering activity, Racketeering Act 3, [the] conspiracy to murder Vincent Mistretta,”
but “should have assigned [USSG] § 2A1.5.” (Appellant’s Br. 4-5.) According to6
Grecco, the court’s application of USSG § 2A1.1 instead of USSG § 2A1.5 contravenes

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7
retroactive Amendment 591 to the Guidelines.
By Opinion and Order dated September 26, 2008, the District Court denied
Grecco’s motion. The District Court essentially assumed that it should have applied
USSG § 2A1.5, but then ruled that the application of USSG § 2A1.5 would not have
changed Grecco’s sentencing range because the death of Mistretta, the object of the
conspiracy to commit murder, made the USSG § 2A1.5(c)(1) cross reference to USSG
§ 2A1.1 applicable. (App. 3.) The District Court reasoned that under such circumstances,
the approach advocated by Grecco as Amendment 591-compliant would not result in a
lower sentencing range, eliminating the possibility of § 3582(c)(2) sentencing relief. In
reaching this conclusion, the District Court relied on a non-precedential opinion of this
Court, United States v. Davis, 205 F. App’x 28 (3d Cir. 2006) (non-precedential).
The government argues, primarily, that the District Court’s ruling should be
affirmed on different grounds. In the government’s view, Amendment 591 does not have
any impact on the calculation of the defendant’s sentence because the sentencing court
prospectively complied with the method prescribed by Amendment 591. In such
circumstances, defendant’s motion for sentencing relief pursuant to § 3582(c)(2) was
properly denied because Amendment 591 did not lower the applicable sentencing range
on which defendant’s sentence was based. The government’s position is aligned with
another non-precedential opinion of this Court, United States v. Sparacio, 312 F. App’x
478 (3d Cir. 2009) (non-precedential).

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8
We will affirm on the ground proposed by the government.
II.
We review a district court’s interpretation of the United States Sentencing
Guidelines, including amendments, de novo. United States v. Mateo, 560 F.3d 152, 154
(3d Cir. 2009) (citing United States v. Wood, 526 F.3d 82, 85 (3d Cir. 2008)). A court’s
ultimate decision of whether to grant or deny a defendant’s motion to reduce his sentence
under § 3582(c)(2) is reviewed for abuse of discretion. Id. at 154 & n.2. We may affirm a
district court ruling on any ground supported by the record. Kabakjian v. United States,
267 F.3d 208, 213 (3d Cir. 2001).
Our analysis begins with 18 U.S.C. § 3582(c)(2), the statutory basis for Grecco’s
motion. Subsection (c)(2) creates an exception to the general rule that a district court
“may not modify a term of imprisonment once it has been imposed,” 18 U.S.C. § 3582(c),
as follows:
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o),
upon motion of the defendant or the Director of the Bureau of Prisons, or on
its own motion, the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
Id. § 3582(c)(2). As we have recently held, defendants seeking sentencing relief pursuant
to § 3582(c)(2) must satisfy the section’s two eligibility requirements. “First, the
defendant must have been ‘sentenced to a term of imprisonment based on a sentencing

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9
range that has subsequently been lowered by the Sentencing Commission;’ and second,
the sentence reduction must be ‘consistent with applicable policy statements issued by the
Sentencing Commission.’” Doe, 564 F.3d at 309. Where these requirements are not
satisfied, the district court does not have jurisdiction to consider any discretionary
reduction in sentence under § 3582(c)(2). Id.
With regard to the first requirement, we have held that the phrase “based on a
sentencing range that has subsequently been lowered” must be read as a unit and that the
term “‘sentencing range’ clearly contemplates the end result of the overall guideline
calculus, not the series of tentative results reached at various interim steps in the
performance of that calculus.” Mateo, 560 F.3d at 155 (quoting United States v.
Caraballo, 552 F.3d 6, 10 (1st Cir. 2008)). In cases where an amendment to the
Guidelines does not impact the sentencing range “actually used” by the sentencing court
in deciding on a defendant’s sentence, § 3582(c)(2) sentencing relief is not available. Id.
For the second requirement, the “applicable policy statements issued by the
Sentencing Commission” may be found in USSG § 1B1.10. In subsection (a)(2) of that
provision, the Sentencing Commission specifies the conditions under which “[a]
reduction in the defendant’s term of imprisonment is not consistent with [the Sentencing
Commission’s] policy statement and therefore is not authorized under 18 U.S.C.
§ 3582(c)(2).” USSG § 1B1.10(a)(2). Specifically, a reduction is not authorized where
“(A) [n]one of the amendments listed in subsection (c) is applicable to the defendant; or

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Although this Court has distinguished between the 18 U.S.C. § 3582(c)(2)7
requirement that the defendant’s sentence be “based on a sentencing range” that was
subsequently lowered by the Sentencing Commission and the USSG § 1B1.10(a)(2)(B)
requirement that an amendment have the effect of lowering the defendant’s “applicable
guideline range,” Doe, 564 F.3d at 310, this Court’s analysis of those two provisions
10
(B) [a]n amendment listed in subsection (c) does not have the effect of lowering the
defendant’s applicable guideline range.” Id. These limitations on the availability of
§ 3582(c)(2) relief are binding. Doe, 564 F.3d at 310; see also Wise, 515 F.3d at 221 &
n.11 (noting that Amendment 706 would not become an appropriate basis for a
§ 3582(c)(2) motion until the effective date of its inclusion in the USSG § 1B1.10(c) list
of retroactive amendments); United States v. Thompson, 70 F.3d 279, 281 (3d Cir. 1995).
For purposes of USSG § 1B1.10(a)(2)(B), the “applicable guideline range” is the
sentencing range actually used by the sentencing court after following the series of steps
laid out in USSG § 1B1.1. Doe, 564 F.3d at 311-12.
The policy statements in USSG § 1B1.10(a)(2) complement the § 3582(c)(2)
requirement that a defendant have been sentenced based on a sentencing range that has
subsequently been lowered. Doe, 564 F.3d at 310-11. The overarching rule to be derived
from the § 3582(c)(2) requirement and the USSG § 1B1.10(a)(2) limitations is that
§ 3582(c)(2) relief is only available where a guidelines amendment listed in USSG
§ 1B1.10(c) has some impact on the end result of the guidelines calculation process,
lowering the guideline range or guideline sentence actually used by the trial court in
sentencing the defendant. Moreover, this is an eligibility rule which precedes the7

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reaches the same result. Doe, 564 F.3d at 311-12; Mateo, 560 F.3d at 155.
For the versions of guideline provisions that predated Amendment 591, we will8
refer to the 1991 Guidelines which were in effect on the date of Grecco’s sentencing. For
the amended versions of these provisions we will refer to the 2000 Guidelines.
11
sentencing court’s discretionary consideration of whether a reduction in sentence is
warranted in a particular defendant’s case. Doe, 564 F.3d at 309; see Wise, 515 F.3d at
220 n.10 (referring to § 3582(c)(2) relief in the context of “qualifying defendant[s]”); see
also United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998); United States v. Wyatt,
115 F.3d 606, 608-09 (8th Cir. 1997).
In this case, Grecco bases his § 3582(c)(2) motion on Amendment 591 to the
Guidelines, which became effective on November 1, 2000. We considered Amendment8
591 at length in United States v. Diaz, 245 F.3d 294 (3d Cir. 2001) to determine whether
it should apply retroactively on appeal. We concluded that the Amendment effected a
substantive change in the Guidelines and, therefore, could not be applied retroactively on
appeal. Id. at 303, 304. Although this case concerns the retroactive application of
Amendment 591 in a different context, the analysis of the Amendment in Diaz remains
instructive.
Prior to Amendment 591, the Guidelines directed sentencing courts to determine
the offense guideline “most” applicable to the offense of conviction and to use the
Statutory Index (Appendix A) for “assist[ance]” in that determination. See USSG
§§ 1B1.1(a), 1B2.1(a) (1991); Diaz, 245 F.3d at 302. The Introduction to the Statutory

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The Sentencing Commission identified one narrow exception to this general rule9
which is not relevant in the instant case. See USSG § 1B1.2(a).
12
Index reinforced and clarified this directive, stating that “in an atypical case,” where “the
guideline section indicated for the statute of conviction is inappropriate because of the
particular conduct involved, use the guideline section most applicable to the nature of the
offense conduct charged in the count of which the defendant was convicted.” USSG App.
A, intro. (1991); Diaz, 245 F.3d at 302.
Amendment 591 deleted the permissive language quoted above and substituted
mandatory language directing the sentencing court to “[r]efer to the Statutory Index
(Appendix A) to determine the Chapter Two offense guideline, referenced in the
Statutory Index for the offense of conviction.” USSG § 1B2.1(a) (2000); Diaz, 245 F.3d
at 302; see also USSG App. C, amend. 591 (Nov. 2000) (deleting permissive language in
USSG § 1B1.1(a), USSG § 1B2.1(a), and the Introduction to the Statutory Index). As this
Court noted in Diaz, the Sentencing Commission promulgated Amendment 591 to
“emphasize that the sentencing court must apply the offense guideline referenced in the
Statutory Index for the statute of conviction.” Diaz, 245 F.3d at 302 (quoting USSG App.9
C, amend. 591, Reason for Amendment (Nov. 2000)) (emphasis in Diaz).
Grecco argues that the District Court’s use of USSG § 2A1.1 (first degree murder)
instead of USSG § 2A1.5 (conspiracy to commit murder) violates Amendment 591
because the Racketeering Act found by the jury was the conspiracy to murder Mistretta

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13
and not the substantive offense. In essence, Grecco objects to the District Court’s use of
USSG § 2A1.1 based on any relevant conduct finding that Grecco committed first degree
murder or, indeed, any relevant conduct finding that the conspiracy to murder Mistretta
resulted in Mistretta’s death such that the USSG § 2A1.5(c)(1) cross reference would
apply. According to Grecco, the use of relevant conduct findings to select any “applicable
offense guideline” runs afoul of Amendment 591 regardless of how the selection fits
within the guidelines calculation process.
In his brief, however, Grecco gives Amendment 591 short shrift, relying instead on
provisions of the Guidelines which were not affected by Amendment 591. Grecco does
not account for the fact that the initial offense guideline used by the sentencing court for
his RICO convictions—USSG § 2E1.1—was the one listed in the Statutory Index for
violations of RICO, 18 U.S.C. § 1962. (PSR ¶¶ 76, 85); USSG App. A. More
importantly, Grecco does not endeavor to explain why Amendment 591 should have any
impact on the sentencing court’s application of the USSG § 2E1.1(a)(2) cross reference
for “underlying racketeering activity,” such as the conspiracy to murder Mistretta.
Grecco’s argument fails to appreciate that while the conspiracy to murder Mistretta was a
predicate offense for his RICO conviction and was an “underlying offense” treated by the
District Court “as if contained in a separate count of conviction” for purposes of the
USSG § 2E1.1(a)(2) cross reference, it was not an offense of conviction for Amendment
591 purposes. Grecco’s “underlying criminal activity” was only relevant for cross-

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14
referencing, a function not covered by Amendment 591.
Although Diaz did not specifically address the scope of Amendment 591, the
Amendment is clearly limited to the sentencing court’s initial selection of an offense
guideline. Both the structure and purpose of the Amendment support this conclusion, and
it is the same conclusion that has been reached by other courts. See United States v.
Hurley, 374 F.3d 38, 40 (1st Cir. 2004); United States v. Rivera, 293 F.3d 584, 586-87
(2d Cir. 2002).
Instructions for applying the Guidelines appear in USSG § 1B1.1 which prescribes
a “sequence of steps” to be taken by the sentencing court in calculating a defendant’s
guideline range or guideline sentence. United States v. Johnson, 155 F.3d 682, 684 (3d
Cir. 1998); accord United States v. McDowell, 888 F.2d 285, 293 (3d Cir. 1989). Only the
first two steps are relevant to this appeal. At the first step in the process, a court
determines the applicable offense guideline section in Chapter Two (Offense Conduct)
for the defendant’s statute of conviction by consulting the Statutory Index (Appendix A).
USSG §§ 1B1.1(a), 1B1.2(a). At the second step, described in USSG § 1B1.1(b), the
court “[d]etermine[s] the base offense level and appl[ies] any appropriate section specific
offense characteristics, cross references, and special instructions contained in the
particular guideline in Chapter Two in the order listed.” USSG § 1B1.1(b) (emphasis
added). For step two, a court may consider relevant conduct, as defined by USSG

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“Relevant conduct” is broadly defined to include: “all acts and omissions10
committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused
by the defendant; and . . . in the case of jointly undertaken criminal activity . . . , all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense; . . . all harm that resulted from [those] acts and
omissions . . . , and all harm that was the object of such acts and omissions; and . . . any
other information specified in the applicable guideline.” USSG § 1B1.3.
15
§ 1B1.3, unless otherwise specified by the Guidelines. USSG §§ 1B1.2(b), 1B1.3(a);10
United States v. Aquino, 555 F.3d 124, 127-28 (3d Cir. 2009); Watterson v. United States,
219 F.3d 232, 235-36 (3d Cir. 2000).
Amendment 591 revised USSG § 1B1.1(a), USSG § 1B1.2(a), Application Note 1
to USSG § 1B1.2, and the Introduction to the Statutory Index. USSG App. C, amend. 591
(Nov. 2000); Diaz, 245 F.3d at 301-02. All of these changes concern the first step in the
guidelines application process. Amendment 591 did not modify USSG § 1B1.1(b)
(describing step two), USSG § 1B1.2(b) (authorizing the use of relevant conduct after
step one), or USSG § 1B1.3 (defining relevant conduct). USSG App. C, amend. 591
(Nov. 2000). Thus, although Amendment 591 removed the permissive language that gave
sentencing courts some flexibility in selecting offense guidelines based on relevant
conduct at step one, it did not invalidate the use of relevant conduct for other steps in the
guidelines calculation process.
The Sentencing Commission’s statement of reasons with regard to Amendment
591 confirms this interpretation. In that statement, the Commission described a particular

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16
problem that it intended to remedy in promulgating Amendment 591, specifically that
various courts had relied on pre-Amendment language to deviate from the offense
guidelines listed in the Statutory Index (Appendix A) for statutes of conviction. USSG
App. C, amend. 591, Reason for Amendment (Nov. 2000) (citing, inter alia, United
States v. Smith, 186 F.3d 290 (3d Cir. 1999)); see Diaz, 245 F.3d at 302-03; Hurley, 374
F.3d at 40-41. The Commission specifically noted that relevant conduct findings, while
inappropriate when referring to the Statutory Index at step one, nevertheless remain
relevant at other steps under USSG § 1B1.3(a). USSG App. C, amend. 591, Reason for
Amendment (Nov. 2000). At no point does the Commission suggest that Amendment 591
affects, much less invalidates, the application of cross references based on a court’s
relevant conduct findings.
In this case, the District Court correctly selected the appropriate offense guideline
for the statute of conviction using the Statutory Index. Before Amendment 591, the
Statutory Index “provid[ed] a listing to assist” the District Court in selecting USSG
§ 2E1.1 as the appropriate offense guideline for violations of RICO, 18 U.S.C. § 1962;
After Amendment 591, the Statutory Index “conclusively point[ed]” to USSG § 2E1.1 as
the offense guideline for Grecco’s RICO conviction. The result, however, is the same,
and the Amendment 591 analysis stops there. Because Amendment 591 does not impact
the District Court’s subsequent application of the USSG § 2E1.1(a)(2) cross reference for
“underlying racketeering activity,” it has no bearing on the sentencing errors alleged in

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Grecco’s motion and, therefore, provides no basis for a reduction in Grecco’s sentence
pursuant to 18 U.S.C. § 3582(c)(2).
III.
For all of the foregoing reasons, we conclude that Grecco was not eligible for a
sentence reduction under 18 U.S.C. § 3582(c)(2), and that, as a result, the District Court
lacked jurisdiction to grant the relief requested in his motion. Thus, we will affirm the
order of the District Court denying Grecco’s § 3582(c)(2) motion.

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